Long v. Ryan

SHAW, J.

The defendants appeal from the judgment and from an order denying a new trial.

The action was brought to annul and cancel a deed purporting to have been executed on July 22, 1905, by the decedent, Sarah M. Ryan, conveying certain parcels of land to her two daughters, the defendants herein. On the day of its date the deed was delivered in a sealed envelope by the grantor to the Title Insurance & Trust Company as custodian with directions for its delivery upon certain contingencies to happen within a fixed period. • The contingencies did not happen within the time fixed and there were several extensions made by her. Finally on July 16, 1907, the deed being in the possession of the custodian, she indorsed upon the envelope instructions for delivery, in substance, as follows:

This deed you will hold until July 22, 1910, at which time, if I be then living, you will deliver the same to me, but if I should die in the mean time, you will thereupon immediately upon my death deliver said deed to my daughters Mary N. Ryan and S. Maude Ryan.

On September 26, 1908, she died intestate, leaving surviving as her sole heirs the two daughters aforesaid and one son. Thereafter the custodian delivered the said deed to the daugh

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ters who placed the same of record and now claim title thereunder.

The court found that the grantor did not at any time intend to part with her title to the property described in said deed or with the dominion and control over the deed, during her lifetime, but intended to and did retain control over said deed and the title to said property during her lifetime, and that she intended that the deed should not be delivered and that no title to the property should pass thereunder until after her death. Upon this the court concluded that the deed never was delivered and gave judgment that it be canceled.

It has been many times declared by this court that where the owner of land signs a deed therefor to one person and thereafter delivers such deed to a third person, with directions to such third person to hold the same during the lifetime of such grantor and upon the grantor’s death to deliver it to the grantee, intending at the time of such delivery to the custodian to part forever with all right or power thereafter to' repossess, retake, or control the deed, such delivery is effectual and valid, and upon the death of the grantor the estate goes, by virtue thereof, to the grantee, who may then compel delivery, if necessary.